Citation Numbers: 95 A.D. 571, 88 N.Y.S. 711
Judges: Laughlin
Filed Date: 7/1/1904
Status: Precedential
Modified Date: 1/13/2023
The evidence is not presented for review ás no case was made or settled. The appeal, therefore, merely presents the exceptions contained in the judgment roll. The appellants excepted to the.conclusions of law relating to the right of the respondents to have the complaint dismissed as not warranted by the facts found. .The precise point presented by the appeal is whether that part of the judgment from which the appeal is taken is warranted by the facts found by the trial court. The learned counsel for the appellants correctly states the rule that, on the review of this question, it may not be assumed that the evidence would have warranted any finding that would tend to support the judgment other than those actually made. (Rochester Lantern Co. v. S. & P. P. Co., 135 N. Y. 209; Delaney v. Valentine, 11 App. Div. 316.)
The action is brought to set aside a transfer of real and'personal property upon the ground that the execution of the same was induced by fraud and undue influence, and to require a reconveyance thereof and an accounting. The instrument, the execution of which is claimed to have been brought about by fraud and undue influence, was in the form of a deed conveying real estate and transa ferring personal property from the plaintiffs’ testatrix to the defendant Weld. It was "executed on the 20th day of January, 1903. The respondents were stockbrokers and Weld was in their employ as a clerk from the 23d day of December, 1902. Prior to that time he had enjoyed the confidence and trust of the testatrix and had been intrusted by her with the management and control of her stocks, bonds and other securities. The testatrix at the instance of Weld had stock dealings with the respondents as brokers from the
We think, therefore, that the judgment, in so far as it is appealed from, should be reversed, with costs to appellants, and that upon the findings of the trial court the appellants are entitled to an interlocutory judgment as against the respondents, adjudging that the plaintiffs are the owners of the securities, but that the respondents have a lien thereon for advances made, and that a referee be appointed to-determine' the amount of the lien, and that upon tender thereof the respondents' be required to deliver the securities to the appellants, and upon their failure so to do the appellants shall have personal judgment for the value thereof, which is stated in the findings, o veían d above the amount of the lien of the respondents.
Patterson, Ingraham, McLaughlin and Hatch, JJ., concurred.
■ Judgment, so far as appealed from, reversed, and judgment ordered as stated in opinion.